Citation Nr: 0600970
Decision Date: 01/12/06 Archive Date: 01/19/06
DOCKET NO. 04-23 957 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Manila, the
Republic of the Philippines
THE ISSUE
Whether new and material evidence has been submitted to
reopen the claim as to basic eligibility for Department of
Veterans Affairs (VA) benefits.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
E. I. Velez Pollack, Associate Counsel
INTRODUCTION
This matter came before the Board of Veterans' Appeals
(Board) on appeal from a decision of November 2002 by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Manila, the Republic of the Philippines. The RO denied
reopening the claim for basic eligibility for VA benefits.
FINDINGS OF FACT
1. The appellant's claim to reopen his claim for basic
eligibility for VA benefits was denied by the Board in a
decision of February 2002.
2. The evidence submitted since the Board's February 2002
decision is cumulative in character.
CONCLUSION OF LAW
1. The February 2002 Board decision, which denied reopening
the claim for basic eligibility for VA benefits, is final.
38 U.S.C.A. § 7104(c) (West 2002).
2. The evidence received since the February 2002 Board
decision, which denied reopening the claim for basic
eligibility for VA benefits, is not new and material and the
claim is not reopened. 38 U.S.C.A. §§ 5103A, 5107, 5108
(West 2002); 38 C.F.R. § 3.156(a) (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
VCAA
On November 9, 2000, the President signed into law the
Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No.
106-475, 114 Stat. 2096 (2000). The Act is applicable to all
claims filed on or after the date of enactment, November 9,
2000, or filed before the date of enactment and not yet final
as of that date. The law eliminates the concept of a well-
grounded claim, and redefines the obligations of the VA with
respect to the duty to assist claimants in the development of
their claims. First, the VA has a duty to notify the
appellant and representative, if represented, of any
information and evidence needed to substantiate and complete
a claim. 38 U.S.C.A. §§ 5102, 5103. Second, the VA has a
duty to assist the appellant in obtaining evidence necessary
to substantiate the claim. 38 U.S.C.A. § 5103A.
The VA has promulgated revised regulations to implement these
changes in the law. See 66 Fed. Reg. 45,620 (Aug. 29, 2001)
(codified as amended at 38 C.F.R §§ 3.102, 3.156(a), 3.159
and 3.326(a)). The intended effect of the regulations is to
establish clear guidelines consistent with the intent of
Congress regarding the timing and the scope of assistance the
VA will provide to a claimant who files a substantially
complete application for VA benefits, or who attempts to
reopen a previously denied claim.
The Board finds that the VA's duties under the VCAA and the
implementing regulations have been fulfilled with respect to
the request to reopen the claim for basic eligibility for VA
benefits. The appellant was provided adequate notice as to
the evidence needed to substantiate his claims. The Board
concludes that the discussions in the rating decision and the
statement of the case (SOC) informed the appellant of the
information and evidence needed to substantiate the claim and
complied with the VA's notification requirements. The
communications, such as a VCAA letter from July 2003,
explained the evidence necessary to establish entitlement.
The Board notes that, although the July 2003 letter did not
advice the appellant of what evidence was to be provided by
him, an August 2003 letter did inform the appellant of what
evidence he was responsible for. In addition, the same
letter informed the appellant that the VA was responsible for
obtaining evidence in the possession of a federal department
or agency. See generally Mayfield v. Nicholson, 19 Vet.
App. 103 (2005). The RO also supplied the appellant with the
applicable regulations in the SSOC issued in March 2004. The
basic elements for reopening a claim have remained unchanged
despite the change in the law with respect to the duty to
assist and notification requirements. The VA has no
outstanding duty to inform the appellant that any additional
information or evidence is needed.
In Mayfield, 19 Vet. App. 103, the United States Court of
Appeals for Veterans Claims (Court) held, in part, that a
VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38
C.F.R. § 3.159(b) must: (1) inform the claimant about the
information and evidence not of record that is necessary to
substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; (3)
inform the claimant about the information and evidence the
claimant is expected to provide; and (4) request or tell the
claimant to provide any evidence in the claimant's possession
that supports to the claim, or something to the effect that
the claimant should "submit any additional evidence that
supports your claim." This "fourth element" of the notice
requirement comes from the language of 38 C.F.R. §
3.159(b)(1). In this case a letter dated July 2003
specifically informed the appellant what evidence was needed
to reopen the claim and asked the appellant to "send [the
RO] this evidence right away." Therefore, the Board finds
that the letter as a whole complied with the fourth element.
Thus, the Board finds that each of the four content
requirements of a VCAA notice has been fully satisfied.
The Board also finds that all relevant facts have been
properly developed, and that all evidence necessary for
equitable resolution of the issues on appeal has been
obtained. The Board finds that the evidence of record
provides sufficient information to adequately evaluate the
claim, and the Board is not aware of the existence of any
additional relevant evidence which has not been obtained.
Therefore, no further assistance to the appellant with the
development of evidence is required.
New and Material
The Board, in a decision dated in February 2002, denied the
appellant's claim of basic eligibility for VA benefits on the
basis that there was no new and material evidence since the
Board's prior denial of November 1992.
At the time of the decision, the record included numerous
pieces of evidence of the reported service in the Philippines
including pay documents from the Philippine Army, Release
from Active Duty Orders from the Philippine Army, Discharge
Certificate from the Philippine Army, an Affidavit from the
Philippine Army Personnel, a letter from the United States
Department of the Army indicating the appellant was
previously provided information regarding military service,
certification from the Philippine Department of National
Defense, certificate of training with the Philippine Army,
and National Personnel Records Center certifications of
September 1986 and September 1987 indicating the appellant
did not have qualifying service.
Submitted since the Board's February 2002 decision are an
affidavit from the appellant recounting his experience as a
prisoner of war during World War II, a letter form the Army
Personnel Reserve Center informing the appellant that there
is no basis for changing the negative report furnished by
NPRC regarding service, a certificate of the Philippine
Veterans Affairs Department, an NPRC certification that the
appellant had no qualifying service dated in October 2003,
testimony during a video conference hearing in front of the
undersigned Veterans Law Judge, and duplicate copies of
evidence previously submitted.
The Board's February 2002 decision is final based upon the
evidence then of record. A prior final decision will be
reopened if new and material evidence is submitted. 38
U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). If the Board
determines that the evidence is new and material, the case is
reopened and evaluated in light of all the evidence, both new
and old. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991).
In making this determination, the Board must look at all of
the evidence submitted since the time that the claim was
finally disallowed on any basis, not only since the time the
claim was last disallowed on the merits. Evans v. Brown, 9
Vet. App. 273 (1996). In the present case, this means that
the Board must look at all the evidence submitted since the
February 2002 Board decision.
The Board notes that the applicable regulation requires that
new and material evidence is evidence which has not been
previously submitted to agency decision makers which relates
to an unestablished fact necessary to substantiate the claim,
which is neither cumulative nor redundant, and which by
itself or in connection with evidence previously assembled,
must raise a reasonable possibility of substantiating the
claim. 38 C.F.R. § 3.156(a).
The Board has made a careful review of the record. The Board
notes that at the time of the prior denial, there was
evidence of the appellant's service in the Philippine Army
and evidence of a negative finding regarding qualifying
service. Since that determination, the appellant has
presented additional evidence of his service in the
Philippine Army. However, no evidence has been introduce
that would question or merit a change of the NPRC negative
finding of qualifying service. In fact, the additional
evidence submitted contains an additional negative finding of
qualifying service from NPRC. Accordingly, the additional
evidence is not new and material. Instead, the evidence is
cumulative of the already established fact that the appellant
served in the Philippine Army but has no qualifying service.
The Court has established that evidence that corroborates a
previously established fact is cumulative. See Anglin v.
West, 203 F.3d 1343 (Fed. Cir. 2000). Accordingly, the claim
is not reopened.
ORDER
The application to reopen the claim for basic eligibility for
Department of Veterans Affairs (VA) benefits is denied.
____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs